Short Reads

Belgian Competition Authority confirms that the acquisition by a dominant player of a small competitor is not automatically an abuse of a dominant position

Belgian Competition Authority confirms that the acquisition by a dominant player of a small competitor is not automatically an abuse of a dominant position

Belgian Competition Authority confirms that the acquisition by a dominant player of a small competitor is not automatically an abuse of a dominant position

02.01.2017 NL law

On 21 November 2016, the Belgian Competition Authority ("BCA") rejected a request for provisional measures by Alken-Maes ("AM"), the second brewer on the Belgian beer market, against Anheuser-Busch Inbev ("ABI"), the number one player and, according to the provisional decision, the dominant player.

The request pertains to the acquisition by ABI of the Bosteels brewery, which holds a number of important connoisseur beers (‘degustatiebieren’) in its portfolio – chiefly the ‘Karmeliet’ brand. The acquisition remained below the Belgian merger control notification thresholds. However, AM lodged a complaint, claiming that the operation amounted to an abuse of dominant position by ABI (article IV.2 of the Code of Economic Law (CEL)). AM applied for interim measures to suspend the integration of Bosteels into ABI.

The BCA held that the request for provisional measures was admissible, yet unfounded. Referring to the Court of Justice’s Continental Can judgment, the BCA acknowledged that mergers can in principle give rise to an abuse of dominant position. It stressed that the review of such operations is primarily governed by the merger control regime (with its clear timetables), but warned of the possible harmful effects of imposing provisional measures in such context. In light of this, the BCA held that there should be ‘strong indications’ in reaching the conclusion that an acquisition could amount to an abuse of a dominant position, and that this presupposes more specific adverse competition consequences other than the merger effect itself.

Upon closer scrutiny, the BCA found no such prima facie indications. While recognizing the dominant position of ABI on the Belgian on-trade and off-trade beer markets, it noted that the acquisition results in only a very limited increase of ABI’s market share, and only a limited increase in the segment for connoisseur beers. The BCA further examined the arguments of AM that the acquisition would nonetheless amount to an abuse of dominant position because it would (i) make ABI the only brewer with a complete portfolio of significant brands, (ii) prevent competitors from strengthening their position in the connoisseur beer segment, (iii) rob competitors of an ‘infiltration’ weapon, (iv) reinforce the negotiation position of ABI, and (v) result in an increased dependence of (small) brewers in the connoisseur segment on ABI. On the basis of an analysis of various facts, the BCA dismissed each of AM’s arguments. In the end, the BCA concluded there was insufficient evidence of a prima facie breach or of serious and irreparable harm. At the same time, the BCA warned that if ABI were to prevent the sale of competing connoisseur beers from catering businesses linked to ABI, such conduct could at a later stage be tested against articles 101 and 102 TFEU, also having regard to the binding commitments entered into by ABI vis-à-vis the European Commission.

The case on the merits pursuant to the complaint of AM remains pending.

This article was published in the Competition Law Newsletter of January 2017. Other articles in this newsletter:

1. General Court rules on the concept of a single and continuous infringement in the smart card chips cartel case 
2. Envelope maker's cartel fine annulled in first successful European settlement appeal
3. District Court of Limburg rules that damages claims in the Dutch prestressing steel case are time-barred
4. ACM established guiding principles in relation to sustainability arrangements

Team

Related news

09.04.2020 LU law
Luxembourg introduces new State aid scheme for businesses affected by Covid-19

Short Reads - Following the Luxembourg government’s declaration of a state emergency on 28 March 2020 and as part of the new measures implemented in response to the unprecedented and unforeseeable consequences of the Covid-19 pandemic, the country has adopted a new law in an effort to support businesses suffering financial consequences.

Read more

02.04.2020 NL law
Claims assigned to a litigation vehicle: who needs to prove what?

Short Reads - Two recent decisions from the Amsterdam Court of Appeal have confirmed that litigation vehicles cannot come empty-handed to the court, and should provide documentation regarding the assignments of claims they submit. The Dutch legal system allows companies and individuals to assign their claims to a “litigation vehicle” or “claims vehicle” that bundles those claims into a single action. In its decisions of 10 March 2020, the Court of Appeal ruled that it is up to litigation vehicles to prove that the assignments can be invoked against the debtor. 

Read more

02.04.2020 NL law
EU competition policy agenda: full to the brim

Short Reads - The European Commission’s competition policy agenda stretches to 2024 and contains plans for many new or revised rules and guidelines. Recent publications, such as the New Industrial Strategy for Europe, shed more light on the Commission’s initiatives and their possible impact on parties from both inside and outside the European Union (EU). These new initiatives include temporary state aid rules to address the effects of the Corona crisis, consultations on the Block Exemption Regulations, and new measures in respect of (primarily) third-country companies.

Read more

02.04.2020 NL law
ACM played high stakes and lost: no more fixed network access regulation

Short Reads - The ACM’s failure to meet the requisite standard of proof has led to the fixed networks of Dutch telecom providers KPN and VodafoneZiggo being free from access regulation. The Dutch Trade and Industry Appeals Tribunal ruled that the ACM had failed to demonstrate the existence of collective dominance, and that KPN and VodafoneZiggo would tacitly coordinate their behaviour absent regulation.

Read more

26.03.2020 BE law
​I am suffering significant financial losses as a result of the spread of the corona virus. Is there a possibility of State aid?

Short Reads - COVID-19 brings certain questions to centre stage regarding State aid. In this short read, Peter Wytinck, Sophie Van Besien and Michèle de Clerck discuss the possibility of State aid in case of significant financial losses as a result of the spread of the corona virus.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring